I concur in all the rulings and in the judgment of reversal, with the exception of the rulings stated in paragraphs 1 and 2(i) of the opinion. I do not concur in the conclusion that the evidence demanded a verdict for the defendant. I do not concur in the ruling contained in paragraph 2(i) that the court did not err in charging the jury that under certain conditions named the burden of proof rested upon the railroad company to show by a preponderance of the evidence that the plaintiff's injuries were proximately caused by his own negligence. A plea by the defendant of negligence on the part of the plaintiff as proximately causing the injury complained of is not in the nature of an *Page 516 affirmative defense. It is a mere allegation of fact which if true would preclude as true the allegation of the plaintiff's petition that the negligence of the defendant caused the injury. In other words, the plea of contributory negligence is but a plea of a fact sustaining the defendant's plea of denial that its negligence caused the plaintiff's injuries. It merely says: the negligence of some one else, and therefore not my negligence, caused the injury to the plaintiff. The defendant is not compelled to plead the plaintiff's negligence in order to avail the defendant of such defense. If upon the trial there should be evidence tending to establish the defendant's negligence as the cause of the plaintiff's injuries, and this evidence standing alone would conclusively establish this fact, but if there was also evidence, whether introduced by the plaintiff or the defendant, tending to establish the plaintiff's negligence as being such cause, it would be a question for the jury, upon a consideration of all the evidence, whether the negligence of the defendant or the negligence of the plaintiff caused the injuries. Unquestionably the burden of proof would be upon the plaintiff to convince the jury by a preponderance of the evidence that the negligence of the defendant, and not the negligence of anybody else, including the plaintiff, was the cause of the injuries. If it appeared to the minds of the jury from a consideration of all the evidence, which must be done, that the evidence equally pointed to the negligence of the plaintiff as causing the plaintiff's injuries as to the negligence of the defendant as causing the plaintiff's injuries, the plaintiff would fail to carry the burden of proof to show by a preponderance of the evidence that the negligence of the defendant caused the injuries. Under such circumstances the defendant would be entitled to prevail. There would be no burden of proof upon the defendant, in order to prevail, to establish by a preponderance of the evidence that the negligence of the plaintiff, and thereby showing not the negligence of the defendant, caused the plaintiff's injuries. The situation would not be altered if, when the plaintiff had closed his case, the inference would be demanded, as a matter of law, that the negligence of the defendant caused the plaintiff's injuries, and the plaintiff therefore could be said to have established a prima facie case, and the defendant had afterwards introduced evidence tending to establish the negligence of the plaintiff as the proximate cause of the plaintiff's injuries, *Page 517 which would be merely evidence tending to establish an affirmative fact in rebuttal of and tending to deny the evidence of the plaintiff to the effect that the negligence of the defendant caused the plaintiff's injuries. The burden of proof would still be on the plaintiff to establish by a preponderance of the evidence the negligence of the defendant, to the exclusion of the negligence of the plaintiff, as the proximate cause of the plaintiff's injuries. There would still be no burden of proof resting upon the defendant to show by a preponderance of the evidence that the negligence of the plaintiff was the proximate cause of the injuries.
I am therefore of the opinion that the court erred in charging as set out in ground 12 of the motion for new trial, as follows: "The burden rests upon the defendant, after the plaintiff has made a prima facie case, to show by a preponderance of the evidence, in order to sustain his plea, that the plaintiff's injuries were proximately caused by his own negligence. The rule that the burden is on the defendant to establish his defense of contributory negligence on the part of the plaintiff, such as would bar a recovery, would not impose on him such a duty in a case where the plaintiff himself had failed to make out a prima facie case, by failing to show negligence on the part of the defendant as alleged, or by himself showing his own contributory negligence," and that "where the evidence is sufficient to raise an issue for the jury upon the question of the defendant's negligence, then, in order for the defendant to avail himself of the affirmative defense of contributory negligence, it is incumbent upon the defendant to prove it by the preponderance of the evidence; and this is true even though he does not in his own pleadings confess his negligence as charged." The decisions which state that the defendant must show the negligence of the plaintiff, or that there is a burden of proof on the defendant to establish the negligence of the plaintiff, as the cause of the injuries, do not conflict with the proposition above laid down. See Williams v. Southern Ry. Co., 126 Ga. 710 (55 S.E. 948); Watts v. Colonial Stages Co., 45 Ga. App. 115 (163 S.E. 523), and cit. *Page 518